CASE · Clearance Adjudication Search EngineCASE

Loading case…

ISCR Case 09-03114.a1 — CASE

Case record

A decided public DOHA case, shown for research, not advice or a prediction.

Decision Date10/22/2010
Statusdenied
LevelAPPEAL
TypeSTANDARD ISCR
Related decisionsSee the appeal decision (Case 09-03114.a1) →See the hearing decision (Case 09-03114.h1) →
Participants
Applicant Representation: Pro Se
Judge: Jeffrey D. Billett, Michael Y. Ra'anan, Jean E. Smallin
Government Counsel: James B. Norman
Guidelines Evaluated
- Guideline BForeign Influence · Against Applicant
- Guideline FFinancial Considerations · Against Applicant

Similar decisions
Other decisions whose allegations read most like this one. Descriptive similarity of the allegations only — not a prediction.
Finding similar decisions…

ISCR Case 09-03114.a1denied

Case Headnote

ISCR Case No. 09-03114.a1

Oct 22, 2010· Hon. Jeffrey D. Billett· appeal

Summary

The applicant, a naturalized U.S. citizen originally from Syria, was denied a security clearance due to concerns under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The denial was primarily based on the applicant's familial ties to Syria, a state sponsor of terrorism.

Specifically, the applicant has a mother and four siblings who reside in Syria. The administrative judge determined that the nature of these relationships did not sufficiently mitigate the foreign influence risks. The applicant's claims that the Syrian government was unaware of his work were deemed nonspecific and lacked sufficient probative value to address these concerns.

Ultimately, the judge found that the disqualifying conditions related to foreign influence, specifically the applicant's connections to family in Syria, outweighed the mitigating conditions presented. As a result, the security clearance was denied.

Conditions Referenced

Disqualifying

AG B1raisedForeign Influence
AG F1raisedFinancial Considerations

Mitigating

AG B8rejectedMitigating Foreign InfluenceThe applicant's relationship with his mother was not sufficiently attenuated to mitigate the government's concerns.
AG F2notedMitigating Financial Considerations

Key Rule Quoted

“A clearance may be granted only when ‘clearly consistent with the interests of the national security.’”
— Department of the Navy v. Egan, 484 U.S. 518, 528 (1988)

Procedural Posture

SOR issuedSep 22, 2009
Answer filed—
Hearing heldJun 15, 2010
Decision dateOct 22, 2010

Cite For

Insufficient Mitigation of Foreign Influence Due to Familial Ties in a State Sponsor of Terrorism
Rejection of Mitigating Conditions Under Guideline B
The Standard for Granting Security Clearance Is Consistency with National Security Interests.

Editorial summary generated for research. Not legal advice; not a prediction. Verify against the full decision before relying on any quoted language.

Appeal at a glance· Full written decision

Affirmed

The appeal involved an applicant seeking a security clearance who was denied due to concerns under Guideline B (Foreign Influence) and Guideline F (Financial Considerations). The applicant argued that the Judge erred in finding that he had four siblings residing in Syria and that the decision was arbitrary and capricious. The Board affirmed the Judge's decision, finding no harmful error and that the decision was supported by substantial evidence.

Appealed bythe applicant

Applicant representationPro se (self-represented)

Judge belowMarc E. Curry — denied the clearance

Decided ona hearing

Guidelines belowGuideline BGuideline F

What the Board reviewed

Erroneous finding of fact — raised by the applicantError found, but harmless
Applicant argued that the Judge erred by finding that he had four siblings residing in Syria.
Decision arbitrary, capricious, or contrary to law — raised by the applicantRejected
Applicant contended that the Judge's adverse security clearance decision was arbitrary, capricious, and contrary to law.

Error found, but harmless. The Board agreed the judge made a mistake but affirmed anyway, because it did not change the outcome.

Why the Board ruled this way

The Board found that the Judge's findings were supported by substantial evidence and that the adverse decision was not arbitrary or capricious. The Board also noted that any errors in the Judge's findings were harmless as the overall decision was sustainable based on the evidence presented.

Standard of review applied

Harmful-error gatekeeperSubstantial-evidence reviewArbitrary-and-capricious reviewProcedural complianceNo de-novo re-decisionNo new evidence on appealDeference to the judge’s credibility calls

Appeal Board panel

Michael Y. Ra’anan — Chair
Jeffrey D. Billett
Jean E. Smallin

Descriptive structured reading of this decided, public Appeal Board decision — what the case says, not a prediction or advice.

Full decision

The complete, official text — footnotes and signatures included — is in the original PDF.

Decision text, by section

DEFENSE OFFICE OF HEARINGS AND APPEALS

APPEAL

SYNOPSIS

KEYWORD: Guideline B; Guideline F DIGEST: The nature of an op-ed piece runs contrary to the types of material appropriate for administrative notice. Adverse decision affirmed. CASENO: 09-03114.a1 DATE: 10/22/2010 DATE: October 22, 2010 In Re: ------ Applicant for Security Clearance ) ) ) ) ) ) ) ) ISCR Case No. 09-03114

APPEAL BOARD DECISION

APPEARANCES

FOR GOVERNMENT James B. Norman, Esq., Chief Department Counsel FOR APPLICANT Pro se The Defense Office of Hearings and Appeals (DOHA) declined to grant Applicant a security clearance. On September 22, 2009, DOHA issued a statement of reasons (SOR) advising Applicant of the basis for that decision—security concerns raised under Guideline B (Foreign Influence), and Guideline F (Financial Considerations) of Department of Defense Directive 5220.6 (Jan. 2, 1992, as amended) (Directive). Applicant requested a hearing. On June 15, 2010, after the hearing, Administrative Judge Marc E. Curry denied Applicant’s request for a security clearance. Applicant timely appealed pursuant to the Directive ¶¶ E3.1.28 and E3.1.30. Applicant raises the following issues on appeal: (1) whether the Judge erred by finding that Applicant had four siblings residing in Syria, and (2) whether the Judge’s adverse security clearance decision was arbitrary, capricious, and contrary to law. For the following reasons, the Board affirms the Judge’s unfavorable decision.1 The Judge made the following findings pertinent to the issues raised on appeal: The State Department has designated Syria as a state sponsor of terrorism. A number of the terrorist groups that have offices in Syria oppose U.S. policies in the Middle East, and have the ability and intent to undermine American interests. Syria has a poor human rights record, including severe restrictions on civil liberties. Syrian security forces have at times monitored its citizens’ telephone conversations, fax transmissions, and mail addressed to both citizens and foreign residents. Applicant was born in Syria. He became a naturalized U.S. citizen in 1989 and has lived in this country since then. Applicant’s family returned to Syria after Applicant moved to the United States. His father is deceased. His mother is a citizen and resident of Syria. Applicant talks to her approximately once a month. Applicant has four sisters. All of them are Syrian citizens, and all except one are Syrian residents. Applicant has two brothers. One is a Syrian citizen and resident, and the other a dual Syrian/U.S. citizen. Applicant has not traveled to Syria in 15 years. He has not seen any of his relatives since then, and he has not talked to any of his siblings in 10 to 15 years. He does occasionally share e-mails with his sister, who is a salesperson, once every few months. The Judge reached the following conclusions: Directive, Enclosure 2 ¶ 8(c)2 serves to mitigate the government’s security concerns regarding Applicant’s relationship with his siblings. Although Applicant has not seen his mother in 15 years, the fact that he talks to her about once a month makes ¶ 8(c) inapplicable. Despite Applicant’s connections with the U.S., the combination of Syria’s disregard for human rights, its sponsorship of terrorism, and its antipathy to U.S. regional interests make the other pertinent mitigating factors inapplicable. Applicant asserts that the Judge erred in making a factual finding that, with one exception, his siblings reside in Syria. He states that the record shows he indicated at the hearing that he did not know whether his siblings reside in Syria. The record consists of Applicant’s answer to the SOR wherein he admits that three of his sisters are citizens and residents of Syria, and he admits that one of his brothers is a citizen and resident of Syria. In his hearing testimony, Applicant specifically indicated that two of his sisters were in Syria and that a third worked in Syria. He indicated that one of his brothers was in Syria. Considering the record as a whole, there is sufficient evidence to support the Judge’s findings regarding the residency status of Applicant’s siblings. Moreover, the Judge concluded that Applicant’s relationship with his siblings was attenuated to the point where the government’s security concerns were mitigated. Thus, any errors in the Judge’s findings in this area would be harmless. Applicant argues that those in the Syrian government do not know where he works, and if they do, they do not know what he does or what information he has access to. He gave similar testimony at the hearing below. Applicant’s assertions are nonspecific and lack any significant probative value. They are insufficient to establish error on the part of the Judge. The Judge noted the specific circumstances of Syria’s posture as a state sponsor of terrorism and its inhospitable posture toward human rights. These facts, together with Applicant’s frequent contacts with his mother, who resides in Syria, provide a sufficient basis for the Judge’s conclusion that Applicant failed to mitigate the foreign influence security concern. As the trier of fact, the Judge has to weigh the evidence as a whole and decide whether the favorable evidence outweighs the unfavorable evidence, or vice versa. See, e.g., ISCR Case No. 06- 10320 at 2 (App. Bd. Nov. 7, 2007). A party’s disagreement with the Judge’s weighing of the evidence, or an ability to argue for a different interpretation of the evidence, is not sufficient to demonstrate the Judge weighed the evidence or reached conclusions in a manner that is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-17409 at 3 (App. Bd. Oct. 12, 2007). In this case, the Judge weighed the mitigating evidence offered by Applicant against the seriousness of the disqualifying conduct and considered the possible application of relevant conditions and factors. He adequately discussed why the disqualifying conduct established under Guideline B was not mitigated. Applicant takes issue with the Judge’s decision not to take administrative notice of Hearing Exhibit XII. The proffered exhibit is an opinion piece by a journalist. The Judge’s decision not to consider the document was an appropriate recognition of the limits of judicial and administrative notice. See ISCR Case No. 02-06478 at 3-5 (App. Bd. Dec. 15, 2003)(the very nature of an op-ed piece runs contrary to the kinds of matters that traditionally have been deemed appropriate subjects for taking administrative notice). The Board does not review a case de novo. The favorable evidence cited by Applicant is not sufficient to demonstrate the Judge’s decision is arbitrary, capricious, or contrary to law. See, e.g., ISCR Case No. 06-11172 at 3 (App. Bd. Sep. 4, 2007). After reviewing the record, the Board concludes that the Judge examined the relevant data and articulated a satisfactory explanation for his decision, “including a ‘rational connection between the facts found and the choice made.’” Motor Vehicle Mfrs. Ass’n of the United States v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) (quoting Burlington Truck Lines, Inc. v. United States, 371 U.S. 156, 168 (1962)). “The general standard is that a clearance may be granted only when ‘clearly consistent with the interests of the national security.’” Department of the Navy v. Egan, 484 U.S. 518, 528 (1988). Therefore, the Judge’s ultimate unfavorable security clearance decision is sustainable.

ORDER

The decision of the Judge denying Applicant a security clearance is AFFIRMED. Signed: Michael Y. Ra’anan Michael Y. Ra’anan Administrative Judge Chairperson, Appeal Board Signed: Jeffrey D. Billett Jeffrey D. Billett Administrative Judge Member, Appeal Board Signed: Jean E. Smallin Jean E. Smallin Administrative Judge Member, Appeal Board

FOOTNOTES

1 The Judge entered formal findings in favor of Applicant under Guideline F. Those findings are not at issue on appeal.

2 “[C]ontact or communication with foreign citizens is so casual and infrequent that there is little likelihood that it could create a risk for foreign influence of exploitation.”